Dillard v. Anderson

• Decision Date: 21 May 1920
• Parties: C. W. DILLARD v. R. R. ANDERSON et al., Judges of County Court, C. H. HARRIS et al., Appellants
• Court: Missouri Supreme Court

222 S.W. 766

282 Mo. 436

C. W. DILLARD v. R. R. ANDERSON et al., Judges of County Court, C. H. HARRIS et al., Appellants

Supreme Court of Missouri

May 21, 1920

Appeal from Pike Circuit Court. -- Hon. Edgar B. Woolfold, Judge.

Re-transferred to St. Louis Court of Appeals.

J. O Barrow and Hostetter & Haley for appellants.

Pearson & Pearson for respondent.

GRAVES J. Woodson, J., is absent.

OPINION

In Banc

GRAVES, J. --

This cause was transferred to this court by the St. Louis Court of Appeals on the ground that title to real estate is involved. In Division One it was transferred to this court on account of a contrariety of opinion in this court.

The action is one by a land owner against the members of the County Court of Pike County, and the Highway Engineer of said county, together with one Williams, a public road overseer. The action is one by injunction, wherein the plaintiff seeks to restrain the defendants from entering upon and laying out a public road over the plaintiff's land. Plaintiff avers that defendants threatened to enter upon his land for such purpose. The suit is to enjoin such threatened trespass upon his property.

The answer avers that a public road had been duly established, by the order of the county court, over the lands of plaintiff, and that defendants were fully authorized to enter upon the property in question.

By its judgment the trial court perpetually enjoined defendants from entering upon the premises of the plaintiff. From such judgment appeal was taken to the St. Louis Court of Appeals, and that court has transferred the case here as above stated. The first question is our jurisdiction. The same state of facts were held in judgment by this court in Hill v. Hopson, 221 Mo. 103, 120 S.W. 29. In that case we held that we had no jurisdiction, and transferred the case to the Court of Appeals. We said that in an injunction suit for a similar threatened trespass, title to real estate was only incidentally involved, and was not involved in the sense which lodged jurisdiction here. The rule in that case determines our jurisdiction in this case. Under that rule we are without jurisdiction, and this cause should be re-certified to the St. Louis Court of Appeals.

In cases of this character we have not ruled by a uniform voice. We should not overlook the fact that the real character of a case of the kind involved here, is to restrain a threatened trespass. In such cases title to real estate is not so involved as to confer jurisdiction here. When the road was ordered, and the party's land was actually taken, was the time when the title to real estate was so involved, as to cast the jurisdiction here. That was...